Resolution Expressing Concern With The Decision Not To Publish The Opinion In Costanza v. Clemente

A RESOLUTION expressing the New Jersey State Bar Association’s concern with the decision by Chief Justice Deborah T. Poritz not to publish the opinion in Costanza v. Clemente.

WHEREAS, the Appellate Division of the Superior Court was created and empowered pursuant to Rule 2:2-3(a)(1) to hear judgments where a finality as to all issues and parties has been established; and

WHEREAS, in 1998, the Supreme Court of New Jersey adopted a Judiciary strategic plan which defines its mission: “We are an independent branch of government constitutionally entrusted with the fair and just resolution of disputes in order to preserve the rule of law and to protect the rights and liberties guaranteed by the Constitution and laws of the United States and this State”; and

WHEREAS, in the case of Costanza v. Clemente the Appellate Division panel of Presiding Judge Hon. Edwin Stern, Hon. Lorraine Parker, and Hon. Jane Grall determined that a fair and just resolution of the case had not taken place at the trial level, in part, because the trial judge ignored court rules when entering the judgment of divorce before properly disposing of all the issues in the case; and

WHEREAS, the Appellate Division panel further made a finding that the reason for the failure to finally decide such issues at the trial level was, in part, due to rigid time frames developed to address calendar clearance; and

WHEREAS, the Appellate Division panel pursuant to court Rule 1:36 made a finding that such opinion should be published; and

WHEREAS, the NJSBA believes that this decision fits at least three of the criteria used for publishing an opinion including the fact that the decision is based upon a matter of practice and procedure not theretofore authoritatively determined, is of continuing public interest and importance, and resolves an apparent conflict of authority, in this case between the need for case clearance balanced against the overarching principle of administering justice fairly and equitably; and

WHEREAS, Chief Justice Deborah T. Poritz, as administrative head of the court system, has directed that the opinion be removed from publication and stripped of any precedential value;

BE IT RESOLVED by the New Jersey State Bar Association Board of Trustees that we do hereby praise the Appellate Division panel for the correctness of its decision; and

BE IT FURTHER RESOLVED that the New Jersey State Bar Association expresses its outrage by the action of the Chief Justice and the implications such actions may have for litigants who fully expect their matters will be resolved in the most fair manner possible, without regard to unnecessary calendar clearance policies.